May 6, 2007


A Liberal Case for Gun Rights Helps Sway Judiciary (ADAM LIPTAK, 5/06/07, NY Times)

Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”

The first two editions of Professor Tribe’s influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation.

Several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas, are in broad agreement favoring an individual rights interpretation. Their work has in a remarkably short time upended the conventional understanding of the Second Amendment, and it set the stage for the Parker decision.

The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.”

The Second Amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Some transcriptions of the amendment omit the last comma.)

If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason.

The individual rights view is far from universally accepted. “The overwhelming weight of scholarly opinion supports the near-unanimous view of the federal courts that the constitutional right to be armed is linked to an organized militia,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.”

The whacko Right has fallen for this strategy hook, line, and forceps.

Posted by Orrin Judd at May 6, 2007 12:00 AM

Look, you can't believe anything the anti-gun people say. They lie all the time. It is that simple.

When the Brady fellow asserts a "near-unanimous" judicial acceptance of the collective-rights model of the Second Amendment, that is just not the truth. When legal scholarship is applied to the RKBA area, another picture come into focus.

No U.S. Supreme Court case provides a clear answer to the collective/individual rights question. Miller, the case always cited by the gun-grabbers, assumed an individual Second Amendment right. The holding was not that Miller had no such right, he not being in the Nationasl Guard. On the contrary, he was assumed to have an individual right, but was not found to have shown that the statute in question had infringed upon that right. It had been an "empty chair" case, the issue having been raised pro forma, not devoloped at trial, and abandoned on appeal. It is correct judicial procedure to decide cases on the simplest grounds available, which is what the courts have done up to now.

Posted by: Lou Gots at May 6, 2007 11:22 AM

Gun fanatics are no different than atheists, communists, queers and abortionists when it comes to absolutist readings of the amendments that serve their personal ends.

Posted by: oj at May 6, 2007 1:30 PM

That is very much so, which is why unsophisticatd, absolutist positions are unwelcome in RKBA circles.

The gun-rights movement has not rolled to victory on all fronts by appearing absolutist or unreasonable. On the contrary. the NRA in particular enjoys an excellent reputation for the accuracy and reasonableness of its activities.
In fact, every sucessful gun-control initiative, such as the original Federal Firearms Act and the post-Brady Instant Records Check has come about with NRA support and concurrence.

To illustrate, the anti-gun people in Philadelphia recently betrayed a promising mayoralty candidate by tricking him into sticking his neck out on the Brady campaign agaist gun dealers. The poor guy put out all kinds of press released and had himself photographed in from of the reputable gun shops he said he would put out of business.

Well, the anti-gun fanatics "neglected" to tell the candidate what the applicable state and federal laws said about his program, and he would up dropping the whole thing, looking like a smacked *ss in the process. Ironically, had he asked the NRA or the Pennsyvania gun people about the issue, he would have gotten as honest answer and could have made a point about "gun violence" which would have held up. Instead he was suckered into being cannon-fodder for the Brady Campaign's effort to open up BATF trace records.

Perhaps there are absolutist gun-rights people out there somewhere. In my experience, however, gun people are more educated, more peaceable and more moderate than the general population. This befits an an activity which is not exactly cheap and which requires a clean criminal record. Moreover, those gun people who are not of the learned professions or other elites have been ready to exercise the yeoman's and goodman's deference.

Posted by: Lou Gots at May 6, 2007 5:22 PM

Which is why it's so dangerous to get in bed with Leftists asserting a personal right where there is none in the text.

Posted by: oj at May 6, 2007 6:50 PM


Is it true that the Phila. City Council is going to sue the Commonwealth (for negligence to legislate) because it won't pass the gun-control laws the city wants, but doesn't have the right to enact itself?

Sounds like Berkeley to me.

Posted by: jim hamlen at May 7, 2007 12:45 AM

Oj: To begin with, no leftist favors the RKBA. Leftists aspire to the Marxist paradigm, namely for the party to seize the aparatus of state coercion and wield them to transform society. The leftist is at war with civil society, and the last thing he wants is for civil society to retain possession of the means of force.

As to the textual basis on the individual right theory, it is the word, "people" which is controlling. This word appears elsewhere in the Constitution only in connection with individual rights, and clearly means something other than "states." If the founders meant "states" and not "people," they knew how to say that.

Jim: One of our more unhinged city councilmen has made such a proposal. No one takes it seriously, As a matter of state constitutional law, it is absurd. This is not New Jersey.

My legislative contacts have told me that Harrisburg had been brusquely dismissive of Philaldelphia's recent requests for new gun laws, so the current outburst was probably an exercise in petulance.

Posted by: Lou Gots at May 7, 2007 5:37 AM

Yes, they just favor freedom, which is how they're duping the 2nd Amendment crowd.

Posted by: oj at May 7, 2007 6:45 AM

Thanks for the answer - there are parts of Philly that are more unhinged than D.C. and this must be one of them. But I guess it was OK for the Africa clan to keep and bear their arms, no?

If Hillary wins the nomination, will we see pictures of her at the shooting range ("I was shooting when I was a little girl on the farm in Illinois").

BTW - Rush nailed her last week on her statement about teaching migrant workers to read on Saturday mornings in Park Ridge. I have been visiting there since the early 1960s, and I don't remember any farmland, certainly not since O'Hare was built.

Posted by: jim hamlen at May 7, 2007 7:16 AM